The word rape, “the ravishing or violation of a woman” derives from the Latin raptus meaning “seizure of property”. Rape, along with abduction, forced prostitution, dowry death, torture, exposure to pornography, sexual harassment, molestation and trafficking, comes under the umbrella term “crimes against women”. The WHO defines sexual violence as “any sexual act, attempt to obtain a sexual act, unwanted sexual advances and acts to traffic, or otherwise directed against a person’s sexuality, using coercion, threats of harm or physical force, by any person regardless of relationship to the victim in any setting, including but not limited to home and work”. The term sexual assault is often used synonymously with rape.
Following a steady increase in both the incidence and reporting of rape, and catapulted into the public domain by the Nirbhaya case of December 2012 where a student was raped and left to die in the national capital, various new legislations and amendments to existing laws have been made. This article looks at role of the doctors in examination of cases of sexual assault, the Criminal Law (Amendment) Act, 2013 and the POCSO Act (Protection of Children from Sexual Offenses Act 2012).
The National Crime Records Bureau (NCRB) data show that a staggering 3,09,546 crimes against women were reported in 2013, an increase of more than 26% over the 2012 figures of 2,44,270. Of these, there were 33,707 reported cases of rape in 2013 compared to 24,923 cases in 2012 (increase of 35.2%). There is also a steady rise in sexual crimes against children. Many believe that these official figures are just the tip of the iceberg; missing incidents greatly outnumber reported ones, and the rate of under-reporting varies sharply by region. Dismally, only one in five perpetrators is convicted.
Victim or survivor?
The term “victim” literally means a person who suffers from a destructive or injurious action; using this word for women who have been subjected to a non- consensual sexual act (assault, rape or sexual violence), is considered disempowering and demeaning. Judgmental attitudes of police and health care providers assume that these persons are so victimized that they do not have agency hence are unable to comprehend their situation and make independent decisions.
Replacing this terminology with “survivor” gives power back to the woman and recognizes that despite her being humiliated and traumatized, she has autonomy and is capable of making decisions.
Health consequences of sexual assault include unwanted pregnancy, sexually transmitted infections, and psychological trauma akin to posttraumatic stress disorder. The examination of such cases should form a part of compulsory training of all postgraduates. CEHAT (Centre for Enquiry into Health and Allied Themes) has developed a Sexual Assault Forensic and Medical Evidence (SAFE) Kit which ensures uniformity in examination, collection of evidence and reporting. A standard examination begins with consent for medicolegal examination and collection of forensic evidence. The health care provider is duty bound to inform the police but the survivor has the right to refuse police investigation (which should be documented); this should in no way interfere with the treatment. Recording a complete description of the incident, eliciting contraceptive history, listing the available evidence, documenting findings, collecting relevant swabs and other samples, documenting and treating injuries, testing for and treating infections, providing emergency contraception, support and referral, are the duty of the examining doctor. The doctor should be unbiased and sensitive to subjects with special needs, for example, marginalized groups like transgender, sex workers, persons with disability or those from minority religions and castes. Above all, he should collect good quality evidence and give a medical opinion (based on clinical findings), rather than a legal opinion on whether rape took place or not. Digital vaginal examination using two fingers, and comments on presence or absence of hymen and laxity of the vagina, should be avoided; terms like “habituation to sexual intercourse” should not be used as prior sexual experience has no bearing to the present case.
The Criminal Law (Amendment) Act 2013
Some important highlights of this act are:
· Various sections of the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the Protection of Children from Sexual Offences Act have been amended, incorporating suggestions of the Justice JS Verma Committee, formed after the Nirbhaya gang-rape in December 2012
· Sections 326A and B of Indian Penal Code (IPC) detail about acid attacks and punishment
· Sections 354A, B, C and D have been rewritten respectively, to include sexual harassment, assault or force to disrobe a woman, voyeurism and stalking, and their punishments
· Section 375 has expanded the definition of rape to include all forms of sexual violence, penetrative or non- penetrative. Penetrative may be peno –vaginal (including labial), oral or anal, including use of fingers, objects or weapons, and non-penetrative includes sexual touching of genital, anal or oral areas by penis, finger, mouth or other objects
· With an aim of providing a strong deterrent against rape, section 376 details the punishments for sexual assault. An offender can be sentenced to rigorous imprisonment for a term which shall not be less than 7 years.
o Section 376A give punishment of up to 20 years to life in case of death of the victim or vegetative state
o Section 376B give punishments to a husband who rapes his wife while they are separated (2 to 7 years imprisonment)
o Section 376C outlines punishments for persons in authority like police officers or public servants who commit sexual crimes (5 – 10 years imprisonment and a fine)
o Section 376D outlines punishments for perpetrators of gang rape, which is 20 years to life
o Repeat offenders may be given life imprisonment or handed the death sentence (section 376E)
· The act recognizes the right to treatment for all survivors by public and private health care facilities; failure to administer treatment is now an offence under the law
· No reference should be made to past sexual practices of the survivor
· The age for consensual sex is 18 years as fixed by the law
· Criticisms of this act have come from many human rights groups and are:
o Marital rape and men as victims of rape has not been addressed
o Reduction in age of consent to 16 so as to protect couples having consensual sex
o Amending the Armed Forces Act so that armed forces personnel accused of sexual crimes can be prosecuted without sanction
POCSO Act (Protection of Children from Sexual Offenses Act 2012)
Along with an increase in the number of rape cases, sexual crimes against children less than 18 years has also been on the rise. Prior to this act, children who were victims of sexual abuse had no legal mechanism in place, especially for crimes like harassment, stalking, trafficking and child pornography.
At the centre of the act is the physical, emotional and social health and well being of the child; reporting of sexual offenses is mandatory and non- reporting is punishable. Similar to the Criminal Law (Amendment) Act, punishments for sexual offenses range from few years to life imprisonment, and a fine, with aggravated sexual assault being described in cases of abuse of a mentally ill child or abuse by persons in positions of authority or trust (parents, teachers, doctors, wardens).
Unique features of the POCSO Act are that it places the responsibility of safety and security of the child on the police, who coordinate activities between hospital, shelter home, Child Welfare Committee (CWC) and judiciary. The medical examination is conducted in privacy, in a sensitive manner without causing undue distress to the child. Special courts are appointed to conduct the trial, and the child need not appear in court but may record his or her statement with the help of a parent, teacher or special educator. The special court also fixes an amount which is given as compensation to the child. The POCSO Act is a landmark legislation that protects children from sexual crimes.